A High Court Clash Over Religion in the WorkplaceStandard requiring employer to have 'actual knowledge' of need for accommodation is too rigid.

The National Law Journal
Monday, January 19, 2015

he establishment and free-exercise clauses as well as statutes governing religion have proven a fertile breeding ground for litigation. Increasingly, the workplace setting has given rise to such
disputes. Sometimes they pit observant employers against employees who wish to be free of
coerced religious activities. More often, however, they involve employees, current or prospective,
who require accommodations for their own religious practices.

The latter cases have tended to feature conflicts over scheduling, such as those caused by a
worker's refusal to work on the Sabbath, or contention over items of dress associated with religious
observance.

This term, the U.S. Supreme Court in Equal Employment Opportunity Commission v. Abercrombie
& Fitch Stores, will once more referee a clash between an employer's neutral rule respecting
clothing and an employment applicant's need for a faith-based deviation from it.

Although the issue presented is fairly narrow, the justices’ ruling will shed further light on where a
court that tends to favor religion and business (and sometimes both, as in Hobby Lobby) will draw
the line in a case that opposes the demands of one against the other's.

The EEOC, now the petitioner, sued Abercrombie & Fitch on behalf of Samantha Elauf, a hijab-wearing
Muslim teenager who applied to be a salesgirl at an Abercrombie store. Despite being
otherwise qualified, Elauf was refused the job because of her headscarf. According to Abercrombie
& Fitch, the hijab infringed its “Look Policy,” which bans “caps” and calls on its floor staff to model
“a classic East Coast collegiate style.”

The facts are not entirely clear, but they must be viewed in the light most favorable to petitioner
since the U.S. Court of Appeals for the Tenth Circuit reversed the trial court's grant of summary
judgment to the EEOC and ordered that judgment instead be entered for Abercrombie & Fitch. So
regarded, the record reveals that Heather Cooke, who interviewed Elauf, had seen her in a
headscarf before and assumed, correctly, that she was a Muslim who wore it for religious reasons.
Unsure what to do, Cooke consulted with the district manager.

Despite her belief that Elauf should be hired and her disclosure — which he denied — of her
assumption respecting the religious nature of the practice, the manager told Cooke not to extend
an offer. Neither Cooke nor Elauf raised the topic of the hijab during the interview. Yet earlier Elauf
had asked her friend, a current employee, if wearing the scarf would be permissible. She, in turn,
reported to Elauf that an assistant store manager had said he saw no problem with it, especially if it
was not black (a color forbidden by the Look Policy). Later, however, Cooke told the friend that
Elauf had failed to get the job on account of the hijab. The lawsuit followed.

The governing statute is Title VII, which bars employment discrimination “because of” religion. The
law comprehends an affirmative duty “to reasonably accommodate” a “religious observance or
practice” unless the employer proves it is unable to do so without incurring “undue hardship.” The
precise question presented is whether, as the court of appeals held, an employer may be found
liable for refusing to hire an applicant only if it “has actual knowledge” that such an accommodation
is required and that this knowledge stems “from direct, explicit notice from the applicant.” The
circuits differ on the kind of notice mandated in this type of setting, and the parties dispute the
interpretation of the EEOC's own guidance before the agency took its stance in support of Elauf.

Of course, the law should not permit a company to be blindsided by a sudden claim that it illegally
failed to grant an accommodation if it was, legitimately, unaware of the need. When conflict
between an employer's policies and a form of religious activity emerges during a worker's
employment, “ambush” will rarely be an issue. However, in the context of job seeking, where the
parties usually are unacquainted with each other and the applicant might well be unfamiliar with the
employer's rules, ignorance may cause noncommunication, summary denials of desired positions
— and litigation.

Abercrombie & Fitch argues for the strict-knowledge requirement laid down by the court below
because it not only avoids surprise but also accords with the EEOC's ban on assumptions based
on stereotypes (for example, that wearing a hijab always implicates faith rather than personal
preference) and discouragement of questions to applicants about their religion. In theory, this
posture is not unreasonable. But as the EEOC and various amici curiae note, forceful practical
considerations militate against it. Principally, it rewards employers who adopt a stance of willful
ignorance rather than opening up a dialogue. Such a dialogue is akin to the “interactive process” mandated by the Americans With Disabilities Act's analogous accommodation provision, designed
to explore whether the applicant's needs can be met without undue hardship.

Moreover, this inflexible approach would operate in a setting in which on-line applications systems
already disadvantage the religious job seeker. Many automatically reject a form when the applicant
gives the "wrong" answer, such as responding “no” to a question regarding willingness to work
Saturdays. Finally, an interviewer like Cooke, alerted to a potential conflict between religion and
business regulations, does not have to pose intrusive inquiries to address the situation. Instead,
she could simply have told Elauf that the hijab would violate Abercrombie & Fitch's rules unless
Elauf were wearing it for religious reasons, in which case it might be allowed. A useful conversation
could then have ensued.

Judge David Ebel, partially dissenting in the court of appeals, points the way to the best resolution
of this lawsuit. Neither party should have been granted summary judgment. Rather, the justices
should reject the majority's rigid “knowledge"” holding and remand for further proceedings on issues
that the district court wrongly resolved in favor of petitioner, such as whether Elauf has a sincerely
held belief in Islam and whether permitting the headscarf would have caused Abercrombie undue
hardship. Religious accommodation disputes are usually very fact-intensive. Judges should,
therefore, hesitate to dispose of these divisive cases on entirely legal grounds.